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HomeMy WebLinkAbout07 SECOND READING AND ADOPTION OF ORD 1507DocuSign Envelope ID: 3431 F6CE-8632-432D-8504-AED3F6D95485 MEETING DATE: TO: FROM: SUBJECT: SUMMARY: AGENDA REPORT JUNE 16, 2020 MATTHEW S. WEST, CITY MANAGER ERICA N. YASUDA, CITY CLERK Agenda Item Reviewed: City Manager Finance Director SECOND READING AND ADOPTION OF ORDINANCE NO. 1507 7 "5-W Adoption of Ordinance No. 1507 approves Development Agreement (DA) 2020-0001 which establishes the terms of the DA, public benefits, and annual performance review in conjunction with Conditional Use Permit (CUP) 2020-0006. On June 2, 2020, the City Council approved CUP 2020-0006 amending the conditions of approval for an existing freeway billboard at the Tustin Auto Center. RECOMMENDATION: That the City Council have second reading by title only and adoption of Ordinance No. 1507. BACKGROUND: On June 2, 2020, the City Council had first reading by title only of the following Ordinance: ORDINANCE NO. 1507 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUSTIN, APPROVING DEVELOPMENT AGREEMENT 2020-0001 BETWEEN THE CITY OF TUSTIN AND TUSTIN AUTO CENTER MERCHANTS ASSOCIATION IN ASSOCIATION WITH CONDITIONAL USE PERMIT 2020-2006 FOR A FREEWAY ADJACENT DIGITAL DISPLAY BILLBOARD AT THE TUSTIN AUTO CENTER Attachment: 1. Ordinance No. 1507 I DocuSign Envelope ID: 3431 F6CE-8632-432D-8504-AED3F6D95485 ORDINANCE NO. 1507 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUSTIN, APPROVING DEVELOPMENT AGREEMENT 2020- 0001 BETWEEN THE CITY OF TUSTIN AND TUSTIN AUTO CENTER MERCHANTS ASSOCIATION IN ASSOCIATION WITH CONDITIONAL USE PERMIT 2020-2006 FOR A FREEWAY ADJACENT DIGITAL DISPLAY BILLBOARD AT THE TUSTIN AUTO CENTER The City Council of the City of Tustin does hereby ordain as follows: SECTION 1. The City Council finds and determines as follows: A. That a proper application has been submitted by John Patterson of the Tustin Auto Center Merchants Association for the establishment of a freeway adjacent digital display board by amending the current conditions of approval to allow display of off -premises advertisements. B. That pursuant to Tustin City Code (TCC) Section 9404b(7) and Ordinance No. 1505, freeway adjacent digital display billboards require approval of a conditional use permit, development agreement and public benefits. C. That Development Agreement (DA) 2020-0001 serves to identify public benefits in association with Conditional Use permit (CUP) 2020-0006 for a freeway adjacent digital display billboard at the Tustin Auto Center. D. That a public hearing was duly called, noticed, and held on said application on May 11, 2020, by the Planning Commission. The Planning Commission adopted Resolution No. 4403 recommending that the City Council adopt Ordinance No. 1507 and approve the amendment to the Auto Center Master Sign Program. E. That a public hearing was duly called, noticed, and held on said application on June 2, 2020, by the City Council. F. That this project has been determined to be Categorically Exempt pursuant to Section 15301 (Class 1) of the California Environmental Quality Act in that the subject project involves no physical modifications to an existing structure and results in negligible expansion of an existing use. G. That the DA can be supported by the following findings: The project is consistent with the objectives, policies, general land uses and programs specified in the General Plan and the Auto Center Planned Community regulations in that the proposed freeway adjacent DocuSign Envelope ID: 3431 F6CE-8632-432D-8504-AED3F6D95485 Ordinance No. 1507 DA -2020-0001 Page 2 digital display billboard use is a conditionally permitted use that supports the Tustin Auto Center and City programs. 2. The project is compatible with the uses authorized in the district in which the real property is located in that the site is approved for a freeway digital display billboard and the proposed project is a minor expansion of the allowed use. 3. The project is in conformity with the public necessity, public convenience, general welfare, and good land use practices in that the agreement incorporates public benefits in the form of advertisements for city events and financial contributions to City programs. 4. The project will not be detrimental to the health, safety, and general welfare in that the freeway adjacent digital display billboard structure is existing. That, as conditioned, the billboard structure and use will not be detrimental to health, safety, and general welfare. 5. The project will not adversely affect the orderly development of property in that the existing and surrounding properties are already improved with landscaping, signage and multiple automobile dealerships. 6. The project will have a positive fiscal impact on the City in that the provisions of the proposed DA and conditions of approval will ensure that the project will have a positive fiscal impact on the City. SECTION 2. The City Council hereby approves DA -2020-0001 attached hereto as Exhibit A and subject to final approval of the City Attorney. SECTION 3. Severability. If any section, subsection, sentence, clause, phrase, or portion of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council of the City of Tustin hereby declares that it would have adopted this ordinance and each section, subsection, sentence, clause, phrase, or portion thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases, or portions be declared invalid or unconstitutional. DocuSign Envelope ID: 3431 F6CE-8632-432D-8504-AED3F6D95485 Ordinance No. 1507 DA -2020-0001 Page 3 PASSED AND ADOPTED, at a regular meeting of the City Council of the City of Tustin on this June 16, 2020. DR. ALLAN BERNSTEIN, Mayor ERICA N. YASUDA, City Clerk APPROVED AS TO FORM: DAVID E. KENDIG, City Attorney STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. CITY OF TUSTIN ) ORDINANCE NO. 1507 ERICA N. YASUDA, City Clerk and ex -officio Clerk of the City Council of the City of Tustin, California, does hereby certify that the whole number of the members of the City Council of the City of Tustin is 5; that the above and foregoing Ordinance No. 1507 was duly and regularly introduced at a regular meeting of the Tustin City Council, held on the June 2, 2020, and was given its second reading, passed, and adopted at a regular meeting of the City Council held on the June 16, 2020, by the following vote: COUNCILMEMBER AYES: COUNCILMEMBER NOES: COUNCILMEMBER ABSTAINED: COUNCILMEMBER ABSENT: ERICA N. YASUDA City Clerk DocuSign Envelope ID: 3431 F6CE-8632-432D-8504-AED3F6D95485 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City of Tustin 300 Centennial Way Tustin, CA 92780 Attn: City Clerk [Exempt From Recording Fee Per Gov. Code §6103] DEVELOPMENT AGREEMENT NO. This Development Agreement ("Agreement") is entered into this day of , 2020, ("Effective Date") by and between the CITY OF TUSTIN ("City") and TUSTIN AUTO CENTER MERCHANTS ASSOCIATION, a non-profit California Corporation ("Applicant"). City and Applicant are sometimes collectively referred to in this Agreement as the "Parties." RECITALS A. The Tustin Auto Center located at 1-50 Auto Center Drive, consists of twelve (12) auto dealerships on approximately (50) acres. B. On December 22, 2003, the City Planning Commission approved Conditional Use Permit 03-023 ("CUP 03-023") authorizing amendments to the Tustin Auto Center Master Sign Program allowing for a new electronic changeable copy sign located adjacent to and visible from the Interstate 5 freeway, as more particularly depicted on Attachment "1" appended hereto ("Existing Sign"). C. On April 12, 2011, the City Planning Commission approved Conditional Use Permit 2011-06 ("CUP 2011-06"), superseding CUP 03-023, and authorizing additional amendments to the Tustin Auto Center Master Sign Program. D. The Tustin Auto Center Master Sign Program, as amended by CUP 2011-06, limits displays on the Existing Sign to advertising members of the Auto Center Association and messages relating to dealer or center -wide special events, digital images of current vehicles (without indication of "sale or value pricing"), and dealership hours of operations. E. Tustin City Code Section 9404(b)(7) permits the conversion of an existing freeway oriented electronic changeable copy sign to freeway adjacent digital display billboard upon the approval of a development agreement and subject to certain restrictions and criteria. F. Applicant, with City approval, desires to convert the Existing Sign to a freeway adjacent digital display billboard ("Digital Billboard"). This conversion would not necessitate a physical modification to the Existing Sign. Instead, the conversion would allow Applicant to expand the scope of advertisements and messages permitted on the sign, subject to the limits of 1481099.4 DocuSign Envelope ID: 3431 F6CE-8632-432D-8504-AED3F6D95485 this Agreement and the California Outdoor Advertising Act (Bus. And Prof. Code Sections 5200 et seq.) G. On May 11, 2020, the City Planning Commission, at a duly noticed public hearing to consider the approval of this Agreement, adopted Resolution No. 4403 recommending approval of this Agreement to the City Council and finding the Project, as defined below, categorically exempt from the provisions of the California Environmental Quality Act ("CEQA") pursuant to Section 15301 regarding minor modification of existing structures. H. On June 2, 2020, the City Council of the City, at a duly noticed public hearing to consider the approval of this Agreement, considered the proposal and heard testimony relating to this Agreement. L On June 9, 2020, the City Council conducted the second reading of Ordinance No. 1507, thereby approving this Agreement. J. City finds and determines that all actions required of City precedent to approval of this Agreement by Ordinance No. 1507 of the City Council have been duly and regularly taken. COVENANTS NOW, THEREFORE, in consideration of the above recitals and of the mutual covenants hereinafter contained and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: 1. GENERAL PROVISIONS 1.1 Incorporation of Recitals. The foregoing recitals are true and correct and are incorporated herein by this reference. 1.2 Permitted Conversion of Existing Sign. Subject to the terms and conditions of this Agreement, Applicant is hereby authorized to convert the Existing Sign to a freeway adjacent digital display billboard ("Digital Billboard"). 1.3 Binding Effect of Agreement. From and following the Effective Date, actions by the City and Applicant with respect to the Project, including actions by the City on applications for Subsequent Development Approvals affecting such Site, shall be subject to the terms and provisions of this Agreement. 1.4 Interest in Site and Development Approvals — Conditions Precedent. City and Applicant acknowledge and agree that Applicant has a legal or equitable interest in the Site of the Existing Sign, as more particularly described in Attachment "2" (hereafter "Site") and thus is qualified to enter into and be a parry to this Agreement under the Development Agreement Law. Applicant shall maintain its interest in the Site for the entire Term of this Agreement. 1.5 No Assignment. Applicant may only assign or otherwise transfer this Agreement, or its interest in the Site, to any other person, firm, or entity, upon presentation to the City of an 2 1481099.4 DocuSign Envelope ID: 3431 F6CE-8632-432D-8504-AED3F6D95485 assignment and assumption agreement in a form reasonably acceptable to the City Attorney and receipt of the City's written approval of such assignment or transfer by the City Manager, which approval may be withheld for any reason at the sole discretion of the City. 1.6 Term of Agreement. Unless earlier terminated, this Agreement shall continue in full force and effect through December 31, 2024. Notwithstanding the foregoing, City and Applicant may agree to extend the term of this Agreement pursuant to an agreement in writing upon terms acceptable to both Parties. Within 30 calendar days after the expiration or termination of this Agreement, the Parties shall execute a written cancellation of this Agreement which shall be recorded with the County Recorder pursuant to Section 6.1. Following the expiration of the term and provided no extension of this Agreement is agreed to, then Applicant will limit the scope and subject of advertisements and messages on the Digital Billboard in accordance with Section IV.F.2 of the Tustin Auto Center Master Sign Program, as amended by CUP 2011-06. 1.7 Public Benefits. Applicant shall also provide the following community benefits during the entire Term of this Agreement, for as long as the Digital Billboard is operated: 1. 7.1 City's Display Time on Digital Billboard. Applicant shall provide a minimum reserved share of visual displays on the Digital Billboard free of charge to City for public service announcements and/or advertising of city -sponsored civic events and programs ("City Messages") as specified herein. The City Messages shall receive an 8 second spot in every 80 second rotation, at week long intervals, for a minimum of 16 weeks per each calendar year of the Agreement. For the period extending from the Effective Date through December 31St, 2020, the amount of minimum reserved share of visual displays allotted for City Messages shall be prorated. Further, Applicant shall offer to display City Messages on an "as available" basis free of charge to City, with first right of refusal for available share of visual displays afforded to City. City will be responsible for providing appropriate artwork for the City Messages pursuant to reasonable art specifications as may be specified by Applicant from time to time. City Messages may only display third -party names or logos of City event sponsors when those logos are part of the City Message. Advertising space for City Messages may not be sold or exchanged for consideration of any kind to a non-governmental third party. 1. 7.2 Annual Sponsorship Contribution. Applicant shall make an annual sponsorship contribution ("Contribution") to the City's Parks & Recreation Department to support community events, as specified herein. The Contribution may be applied to the following community events: (1) Tustin Chili Cook -Off, (2) Concerts in the Park, (3) Fourth of July, and/or (4) Tiller Days, and the Applicant will receive name recognition as a sponsor of the events. The City reserves the right to cancel or discontinue any of the above -referenced community events. The amount of the Contribution shall not be offset or pro -rated in the event of any such cancellation or discontinuation. The Contribution for the period ending December 31St, 2020 shall be $25,000. In recognition of the Applicant's 2020 sponsorship of City community events totaling $12,000 prior to the Effective Date ("Previous Payments"), the City agrees to offset the payment for the first Contribution by the amount of the Previous Payments. Accordingly, 1481099.4 DocuSign Envelope ID: 3431 F6CE-8632-432D-8504-AED3F6D95485 the amount owing and payable to the City by Applicant as the Contribution for the first calendar year shall total $13,000. The Contribution for calendar years 2021 through 2024 shall be determined pursuant to Section 1.7.3 below. 1.7.2.1 Payment Schedule. The Contribution shall be paid annually, with the first installment payable no later than 90 calendar days following the Effective Date ("First Due Date"). Subsequent Contribution installments shall be payable on February 28th of each successive calendar year ("Subsequent Due Date(s)"). The First Due Date and the Subsequent Due Date(s) are individually and collectively referred to hereafter as the "Due Date." 1.7.2.2 Late Payment. Failure by Applicant to pay the Contribution to the City within 30 calendar days following the Due Date is considered a material Breach of this Agreement subject to termination in accordance with Section 4.1.1. 1. 7.3 Annual Review of Public Benefits. By no later than January 31St of each year, the City Manager or their designee, and Applicant will review and negotiate the amount of Contribution payable to the City per Section 1.7.2 and consider revisions to the City's share of visual time on the Digital Billboard per Section 1.7.1. The City Manager or their designee is authorized to approve, by written addendum to this Agreement, adjustments to the Contribution amounts and/or the quantity of City display time on the Digital Billboard, provided that the City Manager may not approve a Contribution of less than $25,000 or a reduction in the City's allotment of display time on the Digital Billboard ("Reduction in Public Benefit"). Any Reduction in Public Benefit may only be approved by action of the City Council. The City Manager may, at their discretion, forward any other proposed modification of Public Benefits to the City Council. 1.8 Regulation by Other Public Agencies. It is acknowledged by the Parties that other public agencies not subject to control by City possess authority to regulate aspects of the Site and the Digital Billboard, and this Agreement does not limit the authority of such other public agencies. 2. DEVELOPMENT AND IMPLEMENTATION 2.1 Effect of Agreement on Land Use Regulations. Except as otherwise provided under the terms of this Agreement, the rules, regulations and official policies governing permitted uses of the Site, the density and intensity of use of the Site, the maximum height and size of the proposed Digital Billboard structure, and the design, and improvement and construction standards and specifications applicable to the Site shall be as set forth in applicable land use regulations, including without limitation ordinances, resolutions, codes, rules, regulations and official policies of the City, including, but not limited to, the City's General Plan, Municipal Code and Zoning Code, which govern development and use of the Digital Billboard Site, the California Outdoor Advertising Act (Business & Professions Code § 5200 et seq.) and Regulations (4 Cal. Code of Regulations § 2240 et seq.), and any approvals from the California Department of Transportation Outdoor Advertising Division which are in full force and effect as of the Effective Date of this 4 1481099.4 DocuSign Envelope ID: 3431 F6CE-8632-432D-8504-AED3F6D95485 Agreement. 2.2 Changes to Display. Nothing herein shall cause Applicant to be in Default if it upgrades or replaces the digital display during the term of this Agreement to incorporate newer technology; provided Applicant shall secure all applicable ministerial permits to do so and such upgrade is consistent with the dimensions and standards for the displays, as provided under this Agreement, the Tustin City Code, the California Outdoor Advertising Act (Business & Professions Code § 5200 et seq.) and Regulations (4 Cal. Code of Regulations § 2240 et seq.) 3. REVIEW FOR COMPLIANCE 3.1 Annual Compliance Review. By no later than January 31St of each year, the City Economic Development Director, or their designee, shall conduct a review to ascertain the good faith compliance by Applicant with the terms of the Agreement ("Compliance Review"). The Compliance Review will not require a public hearing unless amendments to this Agreement are being requested by Applicant or recommended by City. However, no failure on the part of City to conduct or complete a Compliance Review as provided herein shall have any impact on the validity of this Agreement. Applicant shall cooperate with the City in the conduct of such Compliance Review and provide the following information and documentation to the City by December 31St of each year: (1) copy of a current and valid CalTrans permit; (2) description of all complaints from CalTrans or the City regarding the Digital Billboard; (3) description of all complaints from the public regarding the display unrelated to any content of the message displayed; and (4) a list of all City Messages displayed during the preceding year of the Term per Section 1.7.1 and a description of the time and duration of such displays. 4. DEFAULT AND REMEDIES 4.1 Termination of Agreement. 4.1.1 Termination of Agreement for Material Default of Applicant. City may terminate this Agreement for any failure of Applicant to perform any material duty or obligation of Applicant hereunder or to comply in good faith with the material terms of this Agreement (hereinafter referred to as "Default" or "Breach"); provided, however, City may terminate this Agreement pursuant to this Section only after (a) providing a thirty (30) day notice to cure to Applicant, and (2) Applicant's failure to cure the Default or Breach during the 30 -day cure period. In the event of Termination by City under this Section, Applicant acknowledges and agrees that City may retain all fees, including the Processing Fee and the Contribution paid prior to the date of termination. 4.1.2 Termination of Agreement for Material Default of City. Applicant, in its discretion, may terminate this Agreement for any failure of City to perform any material duty or obligation of City hereunder or to comply in good faith with the material terms of this Agreement (hereinafter referred to as "Default" or "Breach"); provided, however, Applicant may terminate this Agreement pursuant to this Section only after (a) providing a thirty (30) day notice to cure to City, and (2) City's failure to cure the Default or Breach during the 30 -day cure period. In the event of a termination by Applicant under this Section, Applicant acknowledges and agrees that City may retain all fees, including the Processing 1481099.4 DocuSign Envelope ID: 3431 F6CE-8632-432D-8504-AED3F6D95485 Fee and the Contribution, Applicant paid up to the date of termination, and Applicant shall pay the prorated amount of the Contribution within 60 calendar days after the date of termination that equates to the percentage of time elapsed in the year of the Term at the time of termination. 4.1.3 Termination of Agreement following Revocation of CUP. Notwithstanding the foregoing. This Agreement shall immediately terminate upon revocation of Conditional Use Permit No. 2020-0006 (approved immediately prior to or concurrently with this Agreement) authorizing the conversion of the Existing Sign to the Digital Billboard. In the event of Termination by City under this Section, Applicant acknowledges and agrees that City may retain all fees accrued up to the date of the termination, including the Processing Fee and the Contribution paid up to the date of termination, and Applicant shall pay the prorated amount of the Contribution within 60 calendar days after the date of termination that equates to the percentage of time elapsed in the year of the Term prior to the date of termination. 5. INDEMNIFICATION Applicant agrees to indemnify, defend, and hold harmless City, its elected and appointed officials, boards, commissions, agents, contractors, and employees from and against any and all actions, suits, claims, liabilities, losses, damages, penalties, obligations and expenses (including but not limited to attorney's fees and costs) which may arise, directly or indirectly, from the acts, omissions, or operations of Applicant or Applicant's agents, contractors, subcontractors, agents or employees in connection with the performance of this Agreement, the use and occupation of the Site, and the use and operation of the Digital Billboard, but excluding any loss resulting from the sole negligence or willful misconduct of the City, or its elected and appointed officials, boards, commissions, officers, agents, contractors and employees. Notwithstanding the foregoing, City shall have the right to select and retain counsel to defend any action or actions and Applicant shall pay the cost thereof. The indemnity provisions set forth in this Agreement shall survive termination of this Agreement. 6. MISCELLANEOUS PROVISIONS 6.1 Recordation of Agreement. This Agreement shall be recorded with the County Recorder by the City Clerk within 10 calendar days of execution, as required by Government Code Section 65868.5. Amendments approved by the Parties, and any cancellation, shall be similarly recorded. 6.2 Entire Agreement. This Agreement sets forth and contains the entire understanding and agreement of the Parties with respect to the subject matter set forth herein, and there are no oral or written representations, understandings or ancillary covenants, undertakings or agreements which are not contained or expressly referred to herein. No testimony or evidence of any such representations, understandings or covenants shall be admissible in any proceeding of any kind or nature to interpret or determine the terms or conditions of this Agreement. 6 1481099.4 DocuSign Envelope ID: 3431 F6CE-8632-432D-8504-AED3F6D95485 6.3 Severability. If any term, provision, covenant or condition of this Agreement shall be determined invalid, void or unenforceable, then that term, provision, covenant or condition of this Agreement shall be stricken and the remaining portion of this Agreement shall remain valid and enforceable if that stricken term, provision, covenant or condition is not material to the main purpose of this agreement, which is to allow the Development to be permitted and operated and to provide the Contribution to the City; otherwise, this Agreement shall terminate in its entirety, unless the Parties otherwise agree in writing, which agreement shall not be unreasonably withheld. 6.4 Interpretation and Governing Law. This Agreement and any dispute arising hereunder shall be governed and interpreted in accordance with the laws of the State of California. This Agreement shall be construed as a whole according to its fair language and common meaning, to achieve the objectives and purposes of the Parties hereto. The rule of construction, to the effect that ambiguities are to be resolved against the drafting party or in favor of the non -drafting party, shall not be employed in interpreting this Agreement, all Parties having been represented by counsel in the negotiation and preparation hereof. 6.5 Section Headings. All section headings and subheadings are inserted for convenience only and shall not affect any construction or interpretation of this Agreement. 6.6 Singular and Plural. As used herein, the singular of any word includes the plural. 6.7 Time of Essence. Time is of the essence in the performance of the provisions of this Agreement as to which time is an element. 6.8 Waiver. Failure of a party to insist upon the strict performance of any of the provisions of this Agreement by the other party, or the failure by a party to exercise its rights upon the Default of the other party, shall not constitute a waiver of such party's right to insist and demand strict compliance by the other party with the terms of this Agreement thereafter. 6.9 No Third Party Beneficiaries. This Agreement is made and entered into for the sole protection and benefit for the Parties and their successors and assigns. No other person shall have any right of action based upon any provision of this Agreement. 6.10 Force Majeure. Neither party shall be deemed to be in Default where failure or delay in performance of any of its obligations under this Agreement is caused by earthquakes, other acts of God, fires, rains, winds, wars, terrorism, riots or similar hostilities, strikes and other labor difficulties beyond the party's control (including the party's employment force), government actions and regulations (other than those of the City), court actions (such as restraining orders or injunctions), or other causes beyond the party's reasonable control. If any such events shall occur except as otherwise provided herein, the term of this Agreement and the time for performance shall be extended for the duration of each such event, provided that the term of this Agreement shall not be extended under any circumstances for more than five (5) years and further provided that if such delay is longer than six (6) months, Applicant may terminate this Agreement upon written notice to City and City shall return to Applicant any portion of the Contribution paid for any period after the effective date of such termination. 7 1481099.4 DocuSign Envelope ID: 3431 F6CE-8632-432D-8504-AED3F6D95485 6.11 Mutual Covenants. The covenants contained herein are mutual covenants and also constitute conditions to the concurrent or subsequent performance by the party benefited thereby of the covenants to be performed hereunder by such benefited party. 6.12 Litigation. Any action at law or in equity arising under this Agreement or brought by any party hereto for the purpose of enforcing, construing or determining the validity of any of this Agreement shall be filed and tried in the Superior Court of the County of Orange, State of California, or such other appropriate court in said county. Service of process on City shall be made in accordance with California law. Service of process on Applicant shall be made in any manner permitted by California law and shall be effective whether served inside or outside California. In the event of any action between City and Applicant seeking enforcement of any of the terms and conditions to this Agreement, the prevailing party in such action shall be awarded, in addition to such relief to which such party is entitled under this Agreement, its reasonable litigation costs and expenses, including without limitation its expert witness fees and reasonable attorneys' fees. 6.13 Covenant Not to Sue. The Parties to this Agreement, and each of them, agree that this Agreement and each term hereof is legal, valid, binding, and enforceable. The Parties to this Agreement, and each of them, hereby covenant and agree that each of them will not commence, maintain, or prosecute any claim, demand, cause of action, suit, or other proceeding against any other party to this Agreement, in law or in equity, which is based on an allegation, or assert in any such action, that this Agreement or any term hereof is void, invalid, or unenforceable. 6.14 Project as a Private Undertaking. It is specifically understood and agreed by and between the Parties hereto that the Development of the Project is a private Development, that neither party is acting as the agent of the other in any respect hereunder, and that each party is an independent contracting entity with respect to the terms, covenants and conditions contained in this Agreement. No partnership, joint venture or other association of any kind is formed by this Agreement. The only relationship between City and Applicant is that of a government entity regulating the Development of private property, on the one hand, and the holder of a legal or equitable interest in such property on the other hand. City agrees that by its approval of, and entering into, this Agreement, that it is not taking any action which would transform this private Development into a "public work" project, and that nothing herein shall be interpreted to convey upon Applicant any benefit which would transform Applicant's private project into a public work project, it being understood that this Agreement is entered into by City and Applicant upon the exchange of consideration described in this Agreement, including the Recitals to this Agreement which are incorporated into this Agreement and made a part hereof, and that City is receiving by and through this Agreement the full measure of benefit in exchange for the burdens placed on Applicant by this Agreement. 6.15 Further Actions and Instruments. Each of the Parties shall cooperate with and provide reasonable assistance to the other to the extent contemplated hereunder in the performance of all obligations under this Agreement and the satisfaction of the conditions of this Agreement. Upon the request of either party at any time, the other party shall promptly execute, with acknowledgment or affidavit if reasonably required, and file or record such required instruments and writings and take any actions as may be reasonably necessary under the terms of this 8 1481099.4 DocuSign Envelope ID: 3431 F6CE-8632-432D-8504-AED3F6D95485 Agreement to carry out the intent and to fulfill the provisions of this Agreement or to evidence or consummate the transactions contemplated by this Agreement. 6.16 Eminent Domain. No provision of this Agreement shall be construed to limit or restrict the exercise by City of its power of eminent domain or Applicant's right to seek and collect just compensation or any other remedy available to it. 6.17 Amendments in Writing/Cooperation. This Agreement may be amended only by written consent of both Parties specifically approving the amendment and in accordance with the Government Code provisions for the amendment of Development Agreements. The Parties shall cooperate in good faith with respect to any amendment proposed in order to clarify the intent and application of this Agreement, and shall treat any such proposal on its own merits, and not as a basis for the introduction of unrelated matters. Minor, non -material modifications may be approved by the City Manager. 6.18 Corporate Authority. The person(s) executing this Agreement on behalf of each of the Parties hereto represent and warrant that (i) such party, if not an individual, is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement such party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other agreement to which such party is bound. 6.19 Notices. All notices under this Agreement shall be effective when delivered by United States Postal Service mail, registered or certified, postage prepaid return receipt requested; and addressed to the respective Parties as set forth below or as to such other address as the Parties may from time to time designate in writing by providing notice to the other party: To City: City of Tustin 300 Centennial Way Tustin, CA 92780 Attn: City Manager With Copy to: Woodruff, Spradlin & Smart 555 Anton Boulevard, Suite 1200 Costa Mesa, CA 92626 Attn: David Kendig, Esq. To Applicant: 6.20 Nonliability of City Officials. No officer, official, member, employee, agent, or representatives of City shall be liable for any amounts due hereunder, and no judgment or 9 1481099.4 DocuSign Envelope ID: 3431 F6CE-8632-432D-8504-AED3F6D95485 execution thereon entered in any action hereon shall be personally enforced against any such officer, official, member, employee, agent, or representative. 6.21 No Brokers. City and Applicant represent and warrant to the other that neither has employed any broker and/or finder to represent its interest in this transaction. Each party agrees to indemnify and hold the other free and harmless from and against any and all liability, loss, cost, or expense (including court costs and reasonable attorneys' fees) in any manner connected with a claim asserted by any individual or entity for any commission or finder's fee in connection with this Agreement or arising out of agreements by the indemnifying party to pay any commission or finder's fee. [SIGNATURES ON NEXT PAGE] 10 1481099.4 DocuSign Envelope ID: 3431 F6CE-8632-432D-8504-AED3F6D95485 IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the day and year first set forth above. ATTEST: LI -M Erica N. Yasuda, City Clerk APPROVED AS TO FORM: LI -M David E. Kendig, City Attorney 11 1481099.4 City: CITY OF TUSTIN LIM Dr. Allan Bernstein, Mayor Applicant: TUSTIN AUTO CENTER MERCHANTS ASSOCIATION, By: Its: By: Its: